Wednesday, May 20, 2009

Expansion All Wet

The NY Times reports on Nestle's lawsuit against the expansion of the state's bottle law (and the Politicker provides a link): "A coalition of bottled water companies filed suit on Tuesday to block an expanded bottle deposit law scheduled to take effect next month, arguing that the law, which imposes a deposit fee on bottled water sold in New York State, is unconstitutional.The coalition includes Nestlé Waters North America; the International Bottled Water Association, an industry trade group; and Keeper Springs, a small bottler owned by Robert F. Kennedy Jr., an environmental advocate."

Robert Kennedy? Turns out-on information and belief, as the lawyers say-that RFK Jr. has a stake in a water company; kinda reminiscent of his uncle Ted suing against windmills on Cape Cod. But we digress. What this all means is that the entire expansion may be put on hold for a while, since the companies suing simply couldn't wait for the legislature to get its act together to repair defects in the law: "In a statement, Kim Jeffery, the president of Nestlé Waters, said that the company supported recycling programs but argued that New York’s new law was overly burdensome to companies and consumers. “We would prefer that the Legislature fix these problems, but the deadline is fast approaching and we need to ensure that we will still be able to provide bottled water to our customers,” Mr. Jeffery said."

And it's the attempt to alter the UPC code that is at the heart of the lawsuit: "In a complaint filed in United States District Court in Manhattan, the water companies argued that the labeling requirement violates the Constitution’s equal protection clause because the language of the bill excludes any drink to which sugar has been added, like sports drinks. The complaint also charges that the requirement violates the Constitution’s interstate commerce protections because the wording of the law also seems to ban companies from selling the New York-labeled bottles in other states."

And since these federal actions prohibit severability, any restraining order would have to apply to the entire bill. The suit also raises equal protection issues because of the way in which the law exempts sugared water and sports drinks. As the Politicker points out: "In a complaint filed in United States District Court in Manhattan, the water companies argued that the labeling requirement violates the Constitution’s equal protection clause because the language of the bill excludes any drink to which sugar has been added, like sports drinks. The complaint also charges that the requirement violates the Constitution’s interstate commerce protections because the wording of the law also seems to ban companies from selling the New York-labeled bottles in other states."

So off we go into the federal courts-unless the legislature is now goaded into some remedial action on its own; and the Kruger bill is slated to move next week, but it doesn't address these equal protection claims. All of which leaves NYPIRG's Laura Haight in high dudgeon, according to the Times: "But Laura Haight, a senior environmental associate at the New York Public Interest Research Group, which advocated for the bottle legislation, dismissed the legal action.“It’s ludicrous that the bottled water companies are claiming to support recycling but suing to derail this law,” Ms. Haight said."

Not a dismissal as much as a derisive commentary about her pet concept-one that didn't take some serious business impacts into full consideration. Now, it appears, the courts will-and delay may take us long past the summer months that Laura and her cohort wanted to have beach bottle free.